(영문) 창원지방법원 2016.09.21 2015노1064 | 리걸엔진

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(영문) 창원지방법원 2016.09.21 2015노1064

공공단체등위탁선거에관한법률위반

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1. The judgment below is reversed.

2. The defendant shall be punished by imprisonment with prison labor for ten months;

3. However, for a period of two years from the date this ruling becomes final and conclusive.

Reasons

1. Summary of grounds for appeal;

A. Defendant 1’s misapprehension of the legal doctrine) cannot be deemed as “providing money” under Article 58 subparag. 1 of the Act on Entrusted Elections, such as Public Organizations, Etc. (hereinafter “Entrusted Election Act”). Of money that the Defendant delivered to E, one hundred thousand won of the cash that the Defendant gave to E does not belong to E for election campaign purposes, rather than having the Defendant paid to E for the purpose of election campaign. As such, the Defendant’s act of delivering KRW 100,000 to E does not constitute “providing” under the Commissioned Election Act.

B) Similar to the direction to provide money to union members (1) as stipulated in Article 230(3) of the Act on the Election of Public Officials, in order to fall under the “order” as stipulated in Article 58(4) of the Act on the Election of Public Officials, there must be a relationship within an election organization or a relation corresponding thereto between the person who provides the direction and the person who provides the direction in accordance with the direction. The Defendant was not in a position to issue the direction or order to E at the time of the instant case, and thus, the Defendant’s act does not constitute “order” under the Act on the Election of Public Officials.

(2) The Defendant merely granted money to E to deliver KRW 1.2 million to its members upon the request of E, but did not directly instruct the provision of money to its members. Thus, the Defendant’s act of offering money merely as a preliminary one cannot be deemed as an instruction to provide money.

2) The sentence sentenced by the lower court (the imprisonment of eight months, the suspension of the execution of two years, community service hours, and confiscation) is too unreasonable.

B. The sentence imposed by the prosecutor by the court below is too uneasible and unreasonable.

2. Determination

A. The prosecutor’s ex officio determination is as stated in the revised criminal facts that regards the instant facts charged in the trial below.

유사 판례

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